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Collection and Probate





Sub: Collection and Probate
Tue, 11/09/2007 23:22

Could anyone tell me if the Fair Debt Collection Act applies to Probate?

I am the Independent Executor of my husband's Estate. My husband had a fairly new vechicle which I ended up surrendering to the finance company in July. I sent the original creditor (the finance company)a Claim Notice in April.

The sold the vehicle, but still came up with a BIG deficiency - much of it because they did not cancel any of the extra contracts --extended warranty's etc. though they had promised me they would. They are still trying to collect the entire amount.

They retained an attorney to collect the debt. I recieved a letter from the Attorney dated August 17.

I sent the attorney a letter August 27 (by certified mail) asking them to validate the debt and provide me with proof they are authorized to collect the debt.I also asked them to cease any collection activity until such time as they had mailed me such validation. They recieved my letter on August 29.

They filed a Claim with the Probate Court - filed September 10. (dated Sept. 4, postmarked Sept 5 - Not certified)(the last day to file a claim was September 8 - but that was a Saturday - so the 10th may still be considered "timely")

I also recieved a claim by mail (the same one filed with the court).

However, the only "validation" presented was an affidavit signed by the collection attorney that to the best of his knowledge that this was the correct amount owed, etc.

So my questions are -

1. Is my husband's estate protected by the Fair Debt Collection Act?

2. If I, acting as his executor, requested the debt be validated prior to them making any further attempt to collect on the debt - were they in violation of the Fair Debt Collection Act by submitting a claim to Probate Court on Sept. 10th?

3. Is the affidavit signed by the collection attorney considered "validation" of the debt?

4. Was I entitled to recieve some type of validation from the creditor PRIOR to being sent a claim notice against the Estate? (i.e. does the Claim Notice that was sent to both the court and myself considered "validation?" Or is it considered an attempt to collect a debt since the only "validation" is the affidavit signed by the collection attorney?

Thank you



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Law Student
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Sub: #1 That could work to your advantage. Bring your letter to court, Tue, 09/11/2007 - 23:22



That could work to your advantage. Bring your letter to court, and tell the judge that they wouldn't provide you with any evidence.

Still, I would consult with an attorney in your state. I don't know, maybe the estate could be put into a trust...etc. Look up your state's law, and your state's rules of civil procedure.

He who has freed himself of the disease of "tomorrow" has a chance to attain what he came here for. --G. I. Gurdjieff (1872-1949)

The science is in knowing, the art is in perceiving - Robert Fripp (1946-)

Ever get the feeling you've been cheated? - Johnny Rotten (John Lydon) (1956-)


Unregistered

Sub: #2 I did find this: at a ftc website [quote]Section 805(d) -- Tue, 09/11/2007 - 21:27



I did find this:
at a ftc website

[quote]Section 805(d) -- "consumer" definition. For section 805 purposes, the term "consumer" includes the "consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator."

[53 Fed. Reg. 50101] An attorney debt collector may take legal action within 30 days of sending the required validation notice, regardless of whether the consumer disputes the debt; if the consumer disputes the debt, the attorney may still take legal action but must cease other collection efforts (e.g., letters or calls to the consumer) until verification is obtained and mailed to the consumer.(19)

1. Pre-notice collection. A debt collector need not cease normal collection activities within the consumer's 30-day period to give notice of a dispute until he receives a notice from the consumer. An attorney debt collector may take legal action within 30 days of sending the notice, regardless of whether the consumer disputes the debt. If the consumer disputes the debt, the attorney may still take legal action but must cease collection efforts until verification is obtained and mailed to the consumer.[/quote]

So it looks like it DOES cover estates - but also that cease collection efforts only means calling or writing the person - and NOT filing claims or lawsuits.


Unregistered

Sub: #3 Thank you Law Student. I thought if they filed a claim prior to Tue, 09/11/2007 - 18:43



Thank you Law Student. I thought if they filed a claim prior to my asking for validation, they would be covered. However, since their first contact was to send me a letter, I responded by asking them to validate the debt and cease attempts to collect the debt until they had done so - I was wondering if their filing a claim against the estate was legal (as it was filed AFTER the recieved my request to validate.

I had thought that they would have at least had to send me a letter validating the debt and then filed a claim AFTER that.


Law Student
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Sub: #4 If it's consumer debt, the fdcpa should cover it. I don't think Tue, 09/11/2007 - 18:14



If it's consumer debt, the fdcpa should cover it. I don't think they were in violation, some courts have held that a summons can even be a first contact. The affidavit is bogus and not validation, it is only reafirming that they have a debt and your address.

I would at least consult with an attorney, probate can be different in every state.

He who has freed himself of the disease of "tomorrow" has a chance to attain what he came here for. --G. I. Gurdjieff (1872-1949)

The science is in knowing, the art is in perceiving - Robert Fripp (1946-)

Ever get the feeling you've been cheated? - Johnny Rotten (John Lydon) (1956-)


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